Pathik v Bata (No 2)
[2025] VCC 333
•27 March 2025
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-22-01834
| Amitabh Pathik | Plaintiff |
| v | |
| Mark Bata & Ors (according to the schedule attached) | Defendants |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Written submissions dated 27 February 2025 and 11 March 2025 | |
DATE OF RULING: | 27 March 2025 | |
CASE MAY BE CITED AS: | Pathik v Bata (No 2) | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 333 | |
RULING
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Subject:DAMAGES – INTEREST – COSTS
Catchwords: quantum of the plaintiff’s loss – measure of loss and damage for diminution in value of property – unliquidated damages – whether cost should be paid on a standard or indemnity basis – whether rejection of Calderbank Offer was reasonable
Legislation Cited: County Court Civil Procedure Rules 2018 (Vic), rr 11.11(b), 27.02-27.04, 30, 31, 26, 63A.30; Supreme Court Act 1986 (Vic), ss 30, 60; County Court Act 1958 (Vic), s50.
Cases Cited:Pathik v Bata [2025] VCC 43; Ozzie Homes Building & Construction v Singh & Anor [2024] VCC 1337; Robinson v Harman (1848) 154 ER 363; Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd (2009) CLR 272; Clark v Macourt (2013) CLR 1; Leeda Projects Pty Ltd v Zeng [2020] VSCA 192; Boncristiano v Lohmann [1998] 4 VR 82; Bata v Building Surveyors Code [2024] VCC 1506; RACV Insurance Pty Ltd v Unisys Australia Ltd [2001] VSC 300; Unisys Australia Ltd v RACV Insurance Pty Ltd [2004] VSCA 81; Morris v Riverwild Management Pty Ltd [2009] VSC 439; Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No. 2) [1988] 2 All E.R. 880; Calderbank v Calderbank [1975] 3 All ER 333 (EWCA); PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 191; Cargill Australia Ltd v Viterra Malt Pty Ltd (No 32) [2022] VSC 299; Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435; Aljade and MKIC v OCBC [2004] VSC 351; Oshlack v Richmond River Council (1998) 193 CLR 72; Colgate-Palmolive Co & Anor v Cussons Pty Ltd (1993) 46 FCR 225; IMC Aviation Solutions Pty Ltd v Altain Khuder LLC [2011] VSCA 248; BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3) [2012] VSC 414; Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294; Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [No 2] [2015] VSCA 123; Hannover Life Re of Australasia v Colella [2014] VSCA 205; Hobartville Stud Pty Ltd v Union Insurance Co Ltd [2004] FCA 1600
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | J Anthony-Shaw | Francke Lawyers Pty Ltd |
| For the First Defendant | A Batzis | Starnet Legal |
HER HONOUR:
Introduction
1On 3 February 2025, I gave judgment for the plaintiff (“Mr Pathik”) against the first defendant (“Mr Bata”) for damages for breach of contract and breach of warranty pursuant to a domestic building contract.[1] Subsequently, the Court requested that the parties provide written submissions on the measure of loss and damage to which Mr Pathik is entitled for the diminution in value of the property at 1 Kananook Avenue, Seaford (“the Property”), the subject of the proceeding, in addition to the specific calculation of unliquidated damages consisting of finance costs and outgoings to the date of judgment – taking into account the Court’s reasons in relation the termination date of the Building Contract and the appropriate valuation date of the Property.
[1] Pathik v Bata [2025] VCC 43 (“Reasons”).
2In addition, the Court invited the parties to make any submissions on the question of costs of and incidental to the proceeding.
3The Court provided a timetable for the provision of submissions in relation to the issue of damages and costs. Mr Pathik provided written submissions and calculations dated 27 February 2025 alongside a confidential supporting affidavit of Matthew David Francke sworn on 26 February 2025. Mr Bata filed his written submissions on 11 March 2025. Mr Pathik elected not to file any written submissions in reply on 20 March 2025.
4In my judgment, Mr Pathik is entitled to damages in the sum of $1,493,986.34, together with statutory interest from 13 May 2022 to 27 March 2025 in the amount of $429,367.58. My reasons are set out below.
5Accordingly, I order that Mr Bata pay Mr Pathik the sum of $1,910,596.47 (comprising the amount of $1,923,353.92 minus the sum of $12,757.45 received) based on a termination date of 24 August 2021 and a valuation date of 2 May 2022.
6For the reasons set out below, Mr Bata ought to pay Mr Pathik’s costs of and incidental to the proceeding (including reserved costs) to be taxed in default of agreement on a standard basis in respect of costs incurred up to and including 11.00am on 6 March 2023, and, thereafter, on an indemnity basis.
Issues
7The issues for determination are:
(a) What is the quantum of loss and damage to be ordered in favour of Mr Pathik;
(b) What is the interest on the judgment sum;
(c) What accounting for settlement sums received by Mr Pathik from former co-defendants ought to take place; and
(d) What is the basis upon which the costs of the proceeding ought to be awarded.
Quantum and Loss
Mr Pathik’s submissions
8Mr Pathik submits that, as a result of Mr Bata’s breach of contract and breach of warranty, the Court found that:
(a) “The loss … is the difference in market value”, being the difference between the value of the Property if it had been completed according to the contract, and what was supplied;[2]
(b) “May 2022 is the correct reference point for valuation” and “had the Property been able to be sold as a finished product as promised under the original contract … then Mr Pathik could expect to have received $1,125,000.00 for Unit 1 and $925,000.00 for Unit 2”;[3] and
(c) “Owing to these findings, it is acceptable that Mr Pathik’s loss be measured with reference to the condition that he was ultimately compelled to sell under (the whole block, incomplete etc.), and his losses are correctly referenced by Mr Prescott to the value that he would have received had building gone to plan and he received what he had originally bargained for under the Building Contract. It is appropriate that Mr Prescott looks at the value of the Property and its intended use”.[4]
[2] Reasons at [433].
[3] Reasons at [434].
[4] Reasons at [445].
9Mr Pathik submits that he sold the Property “as-is” for $900,000.00 and it follows that he should have judgment for the difference of $1,150,000.00.
10In relation to the calculation of finance costs and outgoings, taking into account the Court’s reasons set out above in relation to termination and the relevant valuation date, Mr Pathik further relies on the Court’s reasons that:
“Mr Pathik should also be able to recoup damages for interest paid under his construction loan, a loan that he understandably thought he would be able to pay back in time with the completion date under the original contract (that it would be fully paid back in 2019).”[5]
[5] Reasons at [435].
11Mr Pathik submits that his costs and outgoings are allowed as unliquidated damages. Mr Pathik submits that his damages, consisting of interest on construction loans and outgoings, start to run from May 2019. These amounts together total $343,986.34, as set out in his Witness Statement dated 30 September 2024:
(a) $312,464.29 for interest on construction loans from May 2019 to 13 May 2022 (the date of issuing these proceedings);[6] and
(b) $31,522.05 for outgoings from May 2019 to 13 May 2022.[7]
[6] Witness Statement of Amitabh Pathik dated 30 September 2024 at [124]–[127], table on page 26, noting $104,451.00 at 4/5/2022, table on page 27, noting $208,013.29 at 23/5/2022.
[7] Witness Statement of Amitabh Pathik dated 30 September 2024 at [128]–[160], being $31,522.05 excluding the outgoings after the date of filing.
Mr Bata’s submissions
12Mr Bata submits that the three separate dates (classified as “relevant dates”), being the termination date of 24 August 2021, the correct reference point for valuation as May 2022 and the crystallisation of losses date, being the sale of the property on 15 October 2022, are difficult to reconcile and hamper, and do not facilitate a “responsible calculation of loss and damage as at a particular point in time”.
13Mr Bata contends that the report of Mr Brad Prescott dated 2 March 2022 (“the Prescott Report”) is only valid for 3 months. He states that the valuation is 9 months after the purported termination date and 5 months before the date of the crystallised losses. Mr Bata claims that the valuation is too distant, invalid on its own terms and unable to be applied.
14Mr Bata submits that, given the Court’s findings regarding the relevant dates, the valuation is stale and cannot be applied. He further contends that no damages can therefore be quantified with any certainty.
15Mr Bata relies on the decision of this Court in Ozzie Homes Building & Construction v Singh & Anor[8] in support of the proposition that, although the valuation report is in evidence, it cannot be relied upon. The Ozzie Homes decision involved a claim for loss and damage arising from a home loan, in which the home loan was not in evidence before the Court.[9] Mr Bata contends that the valuation in the present case must be discarded and that no finding of loss and damage can be made with any certainty given the lack of evidence before the Court.
[8] [2024] VCC 1337 at [348] (“Ozzie Homes”).
[9] Ibid.
16Mr Bata argues that Mr Pathik should have obtained a contemporaneous valuation either at August 2021 or October 2022.
17Mr Bata concludes that the difference of $1,150,000.00 is not supported by reliable and contemporaneous evidence. He claims that the finding as to loss and damage is based on conjecture and the loss and damage must be zero.
18Mr Bata submits that the application of the stale evidence is incongruous with the final position claimed by Mr Pathik in his submissions and pleadings.
Analysis
19The evidence of Mr Pathik’s valuation expert, Mr Prescott, and his reports were accepted by the Court. Mr Bata seeks to impermissibly reagitate the admissibility of the Prescott Report in his submissions on quantum.
20It is a settled principle governing the assessment of compensatory damages in actions of contact that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as it would have been in if the contract had been performed and the breach had not been committed.[10]
[10] Robinson v Harman (1848) 154 ER 363 at page 365 reaffirmed in Tabcorp Holdings Pty Ltd v Bowen Investments Pty Ltd (2009) CLR 272 at [286] and in Clark v Macourt (2013) CLR 1 at [6].
21To determine the appropriate measure of damages in a particular case, it is necessary to first identify the kind of loss for which the injured party claims compensation. The loss, which is compensable in an action for breach of contract, is that which may fairly and reasonably be considered as arising naturally – that is, according to the usual course of things, from the breach of contract itself, or such as may be reasonably supposed to have been in the contemplation of both parties at the time they made the contract, as the probable result of the breach of it.[11]
[11] Leeda Projects Pty Ltd v Zeng [2020] VSCA 192 at [12] (“Leeda Projects”).
22The injured party bears the onus of proving the claim for damages on the balance of probabilities. To discharge that onus, the injured party must adduce sufficient evidence to establish the loss that is claimed to have been incurred, so as to enable the Court to assess the damages that may be awarded in order to compensate for that loss. Not all forms of loss and damage can be exactly or precisely proven. However, a mere difficulty in estimating damages does not relieve the Court from the responsibility of assessing them as best as it can.[12]
[12] Leeda Projects at [13].
23In contract, if the specific loss was caused by the breach and was within the reasonable contemplation of the parties then that measure of damages may be appropriate. For example, where the property is intended to be an investment property.
24I do not accept Mr Bata’s argument that the May 2022 valuation was stale or too distant. Mr Prescott gave evidence at trial, and I accepted his evidence, that there was no change to the market between March and October 2022.[13]
[13] Reasons at [410].
25I further do not agree that Ozzie Homes is applicable to the present proceeding as that case can be distinguished on the facts.[14] In Ozzie Homes, the plaintiff by counterclaim failed to tender any source documents to support the existence of a loan agreement.[15] Here, the valuation is accepted evidence.[16]
[14] Ozzie Homes.
[15] Ibid.
[16] Reasons at [432].
26But for Mr Bata’s breach of contract, the completion of the contract would have occurred by May 2022. By reason of the breach, Mr Pathik sold the Property for $900,000.00. However, had the Property been completed according to the contract, Mr Pathik would have expected to receive $1,125,000.00 for Unit 1 and $925,000.00 for Unit 2.
27Given my anterior findings that the loss is the difference in market value, the value that Mr Pathik would have received had Mr Bata not breached the contract is $2,050,000.00. In the circumstances, the difference is $1,150,000.00.
28In addition, by reason of Mr Bata’s breach of contract, Mr Pathik suffered consequential losses and I further accept that these losses were within the reasonable contemplation of the parties.[17] This is consistent with the evidence given at trial by Mr Pathik, that he told Mr Bata he had taken out a construction loan to fund the project and that he had intended for it to be an investment property.
[17] Leeda Projects at [179].
29Mr Bata conceded in his submissions that the unliquidated damages depends on the finding of termination as at 24 August 2021 and that the calculation by Mr Pathik might apply, although Mr Bata observed they “appear to be extremely excessive.” However, Mr Bata did not cross-examine Mr Pathik on his evidence in relation to loss and damage or the calculations thereof.
30I therefore accept Mr Pathik’s uncontradicted evidence in relation to the additional interest accrued on his construction loan with Firstmac and Snowbirds LLC from May 2019 to the date of issuing the present proceedings in the sum of $312,464.29.
31In light of the above findings, I accept that Mr Pathik was forced to hold onto the units instead of selling them upon completion. I also accept the fact that construction had been delayed and extensions were required to building permits and planning permits, and the fact that what had been constructed was not in accordance with the planning permit endorsed plans, requiring changes that resulted in corresponding work and application fees.
32I further accept Mr Pathik’s uncontradicted evidence in his witness statement, that he paid outgoings between May 2019 and 13 May 2022 in the sum of $31,522.05. In any event, Mr Bata conceded in his submissions that the outgoings did apply.
Interest
Mr Pathik’s submissions
33Mr Pathik relies on s60 of the Supreme Court Act 1986 (Vic) (“the Supreme Court Act”) which is applicable to the County Court by reason of s50 of the County Court Act 1958 (Vic) and s33 of the Supreme Court Act.
34Section 60(1) provides as follows:
“(1) The Court, on application in any proceeding for the recovery of debt or damages, must, unless good cause is shown to the contrary, give damages in the nature of interest at such rate not exceeding the rate for the time being fixed under section 2 of the Penalty Interest Rates Act 1983 as it thinks fit from the commencement of the proceeding to the date of the judgment over and above the debt or damages awarded.”
35Mr Pathik submits that, based on the Court’s finding that the appropriate time for the valuation of the loss in value of the Property to him was May 2022, which also corresponds to the date of issue of proceedings, the Court ought to award interest pursuant to statute on the judgment sum as follows:
(a) interest on the loss of value amount ($1,150,000.00) and interest on the fixed outgoings ($38,607.22) from the date of issue of proceedings (13 May 2022), as those losses were incurred before the date of issue; and
(b) interest on the construction loan finance loss from the date of issue of proceedings (13 May 2022).
Mr Bata’s submissions
36Mr Bata acknowledged that statutory interest would apply as proposed by Mr Pathik, save for the difference in valuation, given his rejection of the valuation evidence as set out above.
37Mr Bata contends that interest can only apply to the fixed outgoings.
38Mr Bata argues that Mr Pathik has not provided reasons as to why the construction loan finance loss ought to be awarded interest under s60 of the Supreme Court Act. He submits that such an assertion ought to be rejected.
Analysis
39Section 60 of the Supreme Court Act is engaged in the present case as there is a debt or damage over which interest may be awarded. The interest is calculated as follows:
(a) statutory interest on the loss of value of the Property in the sum of $1,150,000.00, from the date of issue to the date of judgment, is $330,506.85 (calculated as 1,050 days, being from 13 May 2022 to 27 March 2025);
(b) statutory interest on outgoings in the sum of $31,522.05, from the date of issue to the date of judgment, is $9,059.35 (calculated as 1,050 days, being from 13 May 2022 to 27 March 2025); and
(c) statutory interest on Mr Pathik’s construction loan in the sum of $312,464.29, from the date of issue to the date of judgment, is $89,801.38 (calculated as 1,050 days, being from 13 May 2022 to 27 March 2025).
40Therefore, the total interest on Mr Pathik’s loss is the sum of $429,367.58.
Reduction in amounts paid by second to fourth defendants
Mr Pathik’s submissions
41Mr Pathik submits that he entered into a deed of settlement with the fourth to sixth defendants on 26 March 2024, in the sum of $180,000.00 – inclusive of costs (“the Deed”). The Deed provided that $150,000.00 was to be paid by the Building Surveyors Code Pty Ltd and Mr Yavuz “Leo” Demirel (the fourth and fifth defendants, respectively) and $30,000.00 from Mr Michael Gaffney (the sixth defendant).
42Mr Pathik contends that the double recovery principle can be distinguished in the present case. The principle against double recovery provides that if a plaintiff with concurrent claims against two or more persons has recovered all or part of the claimed loss from another, that recovery goes in diminution of the damages that will be awarded against the defendant.
43Mr Pathik concedes that the total loss and damage claimed by him in his statement of claim was joint and several as against all the defendants. In that sense, the claims were indeed “concurrent” or “overlapped”. However, Mr Pathik argues that in the terms of the Deed, the sums received represented an undifferentiated settlement amount, taking into account damages and costs between the parties. On the facts as set out in paragraph 4 to 6 of the Francke Affidavit (and the corresponding exhibits), Mr Pathik contends that a significant portion of the settlement sum received represented costs.
44Mr Pathik submits that legal costs did not form part of his damages claim in the proceeding. Rather, the ultimate entitlement to an award of costs in his favour from any defendant to the proceeding arises from statute and is in the Court’s discretion.
45Mr Pathik claims that it cannot be said that the whole of the settlement sum was received by him in respect of damages (as, in the language of Boncristiano v Lohmann,[18] being compensated for costs could not result in the plaintiff obtaining ‘more than the total sum due”). It follows, according to Mr Pathik, that only amounts received by him in respect of damages can fairly be invoked to reduce the damages sum payable by Mr Bata, in order to ensure that there is no double recovery.
[18] [1998] 4 VR 82 at [89-90] (Winneke P, with Charles and Batt JJA agreeing at [96]) (“Boncristiano”).
46Mr Pathik submits that the evidence of the costs of the proceeding as contained in the Francke Affidavit, including the further costs he has borne due to Mr Bata’s unsuccessful attempt to relitigate against the fourth and fifth defendants, is Mr Pathik’s best effort to assist the Court to arrive at a fair assessment of the settlement sum.
47Mr Pathik submits:
(a) the settlement sum of $50,000.00 paid by the sixth defendant under the Deed should not be applied to reduce Mr Bata’s quantum, as Mr Pathik’s costs exceeded that sum (even on a scale basis);
(b) that there should be a reduction for the settlement sum of $150,000.00 paid by the fourth and fifth defendants, but that sum should be reduced by:
(i)Mr Pathik’s costs on an indemnity basis, or, alternatively, on scale. That reduction is $51,515.00 (if indemnity costs) or alternatively $69,625.00 (if scale costs); and
(ii)a further amount that has appropriate regard to the requirement in the Deed of Settlement (Clause 5) that Mr Pathik indemnify the fourth and fifth defendants in respect of their legal costs associated with defending the claim that was later brought against them in Bata v Building Surveyors Code.[19] As set out in the Francke Affidavit,[20] the amount of that liability has not yet been determined, but, by letter of demand dated 14 January 2025 from their lawyers, Wotton Kearney, is asserted to be $49,242.55 excluding GST.
[19] [2024] VCC 1506.
[20] Affidavit of Matthew David Francke dated 26 February 2025 at paragraphs 9-11.
48Mr Pathik contends that the matters set out above largely offset the reduction that ought be made on account of the settlement sum paid by the fourth and fifth defendants.
Mr Bata’s submissions
49Mr Bata submits that the double recovery principle should not be distinguished for the following reasons:
(a) Mr Bata was not a party to the Deed of Settlement and, as such, had no control over its terms, conditions and effect;
(b) the alternative would be to allow double recovery and the Court should not be party to a situation that runs counter to a principle rooted in both law and public policy; and
(c) the technical arguments made in reference to RACV Insurance Pty Ltd v Unisys Australia Ltd[21] should be disregarded as the dictum of Hansen J does not address the real concern that Mr Bata is not a party to the Deed of Settlement itself. Mr Bata contends that the arguments also seem to conflate the claim for the capital amount with the payable costs and interest. Mr Bata argues that it is unfair to state that costs are required to be considered because they were not ultimately included in the claim itself. He asserts that the liability for costs were determined by the Court as applying on a standard basis. Mr Bata says that the question of costs is quite separate from the question of double recovery and should be treated as such.
[21] [2001] VSC 300 (“RACV Insurance Pty Ltd”).
50Mr Bata states that Pagone J’s dictum in Morris v Riverwild Management Pty Ltd[22] is inconclusive. He claims that the reference to a mere “element of arbitrariness” as regards to the calculation of recovery is not conclusive in the context of waiver of the application of the double recovery rule. Mr Bata submits that the “rationale” fails to go far enough. Mr Bata states that in the interests of legal orthodoxy, the Court is requested to reject the effects of both RACV Insurance Pty Ltd[23] and Morris[24] given they are quoted out of context and are too vague to be relied upon with any certainty.
[22] [2009] VSC 439 at [555] (“Morris”).
[23] Ibid.
[24]Morris.
51Mr Bata concludes that the offset referred to by Mr Pathik in his submissions conflates the question of costs with the capital sum awardable as damages. Again, he says it is best for the Court to reject such a reasoning and keep damages and costs separate. Mr Bata claims that any reference to offset is likewise wholly rejected and should not apply.
Analysis
52In Boncristiano,[25] Winneke P stated that a “plaintiff cannot recover more than the total damage which he or she has sustained”.[26] Where the claims for damages are concurrent, in the sense that the claims “overlap”, recovery by the plaintiff of the whole or part of the loss claimed from one defendant will necessarily be taken into account in assessing the damages to be recovered from the other.[27]
[25] Boncristiano at [89-90] (Winneke P, with Charles and Batt JJA agreeing at [96]).
[26] Ibid at [88].
[27] Ibid.
53In RACV Insurance Pty Ltd, Hansen J referred to Boncristiano[28] and the authorities therein, and stated, relevantly:
“In short, when a plaintiff sues two defendants and settles with one but continues to judgment against the other, in the calculation of damages payable by the latter the plaintiff is entitled to treat the settlement sum as allocated first to any claim separate and additional to any claim that was common to the defendants, and the costs of that separate claim, and, secondly, any excess of the settlement sum necessarily referable to the common or overlapping claim is to be credited in favour of the second defendant. It will be recalled … that the terms of settlement did not apportion the settlement sum to claim, interest or costs. Thus there is nothing in the terms of settlement that could affect the application of these principles.”[29]
[28] Ibid.
[29] Ibid at [555].
54Justice Pagone, in Morris,[30] acknowledged that a difficulty in applying the principle against double recovery is that of determining:
“[How] to account or apportion any of the amounts received by the defendants [in respect of costs] when considering the common claims sought against Mr Morris. The task is made more difficult by the fact that the respective parties to each of the settlements did not allocate, and doubtlessly had no need to allocate, the agreed settlement amounts as against any of the items claimed against them, whether for costs or otherwise. As Steyn J observed in Banque Keyser: “In multi-party disputes an element of arbitrariness frequently enters into the calculation of recovery by way of overall settlement”.[31] [emphasis added]
[30] Morris. .
[31] Ibid at [10].
55In the present case, Mr Pathik has conceded that the claims that were mounted against the defendants were concurrent in the sense that they were claims being made to recover the same damage jointly and severally.
56I accept that the relevant principles are set out in Banque Keyser Ullman SA v Skandia (UK) Insurance Co Ltd (No 2)[32] and Boncristiano[33] as observed by Hansen J in RACV Insurance Pty Ltd.
[32] [1988] 2 All E.R. 880.
[33] Boncristiano.
57The terms of the Deed stated that the settlement sum was made in full and final settlement of the allegations made against the fourth, fifth and sixth defendants and that no further sums by way of legal costs or disbursements would be payable to Mr Pathik. The contractual terms of the Deed dealt with claims for costs against each of those defendants. The release granted included a release for claims of costs. The Deed also gave an indemnity by Mr Pathik to the fourth, fifth and sixth defendants for costs arising from any new claim by any of the other parties against them. Consideration was provided for the money received and the releases were given.
58I accept Mr Pathik’s contention that he and each of the fourth, fifth and sixth defendants settled on the basis that some proportion of the proceeds of settlement were referrable to and received in part as the costs that had been incurred against them in causes of action referrable to them in the proceeding.
59The common law principle against double recovery, in contract, has embedded in it a requirement for apportionment in order to do justice between the parties and to ensure that there is not double recovery.
60The respective parties/each of the parties to the Deed did not allocate the agreed settlement amounts as against any of the items claimed against them or for costs or interest. The burden then falls on the recipient of the money seeking further amounts from other defendants to show that there is not double recovery.
61At common law, the right to recover costs was created by statute and was not part of the loss or damage in the claim. The Francke Affidavit exhibits invoice schedules of costs which are solely referrable to the claims against the fourth and fifth defendants and the sixth defendants respectively, and the costs incurred by the fourth and fifth defendants in the proceeding issued against them in Bata v Building Surveyors Code Pty Ltd by Mr Bata, which was dismissed by Judge Anderson on 2 October 2024.[34] The calculations are set out in the Francke Affidavit and Mr Pathik’s written submissions. The table of Mr Pathik’s legal costs on an indemnity basis demonstrates a method of apportionment that divides the costs between the numbers of the parties involved in the dispute until settlement.[35] Thereafter, Mr Bata is liable to 100% of the costs.
[34] [2024] VCC 1506.
[35] Affidavit of Matthew David Francke dated 26 February 2025 at exhibit MDF-16.
62As Pagone J observed in Morris,[36] such a methodology for apportioning costs between the parties on the basis of the number of parties is pragmatic and may well be proportionate and fair.
[36] Boncristiano at [13].
63In the present case, I accept that, pursuant to the terms of the Deed, some proportion of the settlement sum received was referrable to costs. I further accept Mr Francke’s evidence that, at the time of entering the Deed, Mr Pathik’s legal costs on an indemnity basis against the fourth and fifth defendants were $98,485.00 (or $88,000.00 on scale with a 30% discount, except on disbursements) and the sum of $80,375.00 (or $70,000.00 on scale) as against the sixth defendant.
64Further, as per the letter from Wotton Kearney dated 14 January 2025, the solicitors for the fourth and fifth defendants advised that they incurred costs of defending the further claim brought by Mr Bata in the sum of $49,242.55 (excluding GST) and have called upon Mr Pathik to provide that indemnity.
65The amount received by the sixth defendant was relatively small compared to the fourth and fifth defendants. The settlement sum from the sixth defendant of $30,000.00 ought to be applied to the apportionment of his costs of the proceeding in the sum of $70,000.00 on a standard basis. As the costs exceed that of the sum paid, there is no reduction towards Mr Bata’s quantum.
66In relation to the $150,000.00 paid by the fourth and fifth defendants, I accept that Mr Pathik’s costs against the fourth and fifth defendants for their portion of the proceeding is the sum of $88,000.00 on a standard basis and that the quantum demanded by their lawyers pursuant to the indemnity under the Deed is the amount of $49,242.55. Accordingly, there ought to be a reduction of the sum of $137,242.55 from the $150,000.00 paid by the fourth and fifth defendants.
67Therefore, the amount of $167,242,55 of the $180,000.00 is representative of Mr Pathik’s legal costs, and do not form part of the damages claim in the proceeding. It follows that the sum of $12,757.45 of the settlement sum was received by Mr Pathik in respect of damages and can be invoked to reduce the damages sum payable by Mr Bata in order to ensure that Mr Pathik does not recover more than the total damage that he has sustained.
Costs
Mr Pathik’s submissions
68Mr Pathik seeks orders that Mr Bata pay the costs of and incidental to the proceeding (including reserve costs), to be taxed in default of agreement on a standard basis, incurred up to and including 3 March 2023, and thereafter on an indemnity basis, pursuant to an offer of compromise – or, in the alternative, up to 2 March 2023, 22 March 2024 or 3 September 2024 respectively and thereafter on an indemnity basis, on the basis of his Calderbank letters.[37]
[37] Calderbank v Calderbank [1975] 3 All ER 333 (EWCA) (“Calderbank”).
69Mr Pathik submits that r 26.08(2) of the County Court Rules 2018 (“the Rules”) creates a presumption that indemnity costs will be awarded in circumstances where a valid offer of compromise is made by a plaintiff but not accepted and the plaintiff subsequently obtains a judgment no less favourable than the terms of the offer.
70Mr Pathik argues that, in the whole of the circumstances, his statutory offer of compromise to resolve the proceedings is sufficient to entitle him to indemnity costs pursuant to r 26. He contends that:
(a) it complied with the requirements of r 26.03(3) in that the offer stated that it was made in accordance with “Order 26 of the Rules”, and complied on its face with the requirements of rr 27.02-27.04;
(b) it was made open for acceptance for 14 days from the date of the offer as required by r 26.03(3) and it was not withdrawn during that time; and
(c) it stated that it was made exclusive of costs and the offer provided that, if accepted, costs would be taxed on a standard basis in default of agreement as per r 26.02(4)(b).
71Mr Pathik submits that, in relation to the court’s discretion to “otherwise order”, Mr Bata as the party seeking to displace the presumptive rule bears the onus.[38] Any decision to depart from the presumption “will not be made lightly, and the Court must exercise caution in departing from this rule”.[39]
[38] PCCEF Pty Ltd v Geelong Football Club Ltd [2019] VSCA 191 at [23]-[24] (“PCCEF Pty Ltd”).
[39] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 32) [2022] VSC 299 at [43] (“Cargill”).
72Mr Pathik contends that the Court’s costs discretion is to be informed by reasonableness. The reasonableness (or unreasonableness) of the rejection of an offer, whether made under the Rules or in Calderbank[40] form, is to be assessed in accordance with the following non-exhaustive considerations:
“(a) the stage of the proceeding at which the offer was received;
(b) the time allowed to the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed at the date of the offer;
(e) the clarity with which the terms of the offer were expressed;
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree’s rejecting it.”[41]
[40]Calderbank.
[41] Hazeldene’s Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435 (“Hazeldene’s”), see also Cargill at [74].
73In relation to the Calderbank[42] offers, Mr Pathik submitted that the following matters ought to inform the Court’s assessment of the unreasonableness of the rejection of the offer of compromise while it was open for acceptance, as well as demonstrates the objective unreasonableness of Mr Bata’s rejection of the subsequent Calderbank[43] letters to resolve the proceeding:
(a) Mr Pathik’s discovery had already been completed by 13 September 2022 and all discovered documents provided to Mr Bata contained each of the defect reports of Mr Ken Ryan and five alternate-scenario valuation reports of Mr Prescott, of which two were ultimately relied upon by Mr Pathik at trial;
(b) Mr Pathik’s claim was at all times made jointly and severally against the defendants to the proceeding. However, Mr Bata did not run any defence to Mr Pathik’s claim in the proceeding seeking contribution or an apportionment of liability as against the other defendants to reduce his liability – either in the defence as at the time of the offer, nor in subsequent amendments. It follows that even in the period before Mr Pathik resolved his claims against the fourth to sixth defendants in March 2024, Mr Bata was severally liable and was exposed to a real risk of being found solely liable in the proceeding for the whole of the loss and damage claimed by Mr Pathik;
(c) Mr Bata was at all times represented by solicitors and counsel. He was in a position to consider Mr Pathik’s offers to settle the proceeding in the circumstances and obtain advice;
(d) The only means by which Mr Bata sought to reduce his liability in the proceeding was by way of third party claim. Mr Bata led no evidence nor made any submission in support of its third party claim against Mr Christopher Dimitriou at trial. Mr Bata’s last-minute subpoena to Mr Dimitriou to attend Court and give evidence was not pressed;
(e) Mr Bata was aware in January 2023 that the quantum of Mr Pathik’s damages claim exceeded a million dollars, exclusive of costs and interest. Mr Pathik’s earliest particulars of loss and damage filed and served on 11 January 2023 particularised a quantum of approximately $1.2 million. These particulars were updated on 26 March 2024 to $1,327,723.97; and
(f) Mr Pathik’s offer of compromise and each of the Calderbank[44] offers were directed solely to Mr Bata and made clear that it was an offer to settle the whole of the claim against Mr Bata in the proceeding.
[42]Calderbank.
[43] Ibid.
[44]Calderbank.
74Mr Pathik contends that each of the subsequent Calderbank[45] offers were reasonable, timely, and clear - they were supported by detailed and cogent reasons setting out the reasonableness of the offer. Each represented a significant compromise of Mr Pathik’s full claim at the time they were made.
[45] Ibid.
75Mr Pathik submits that Mr Bata’s conduct in failing to accept any, and ultimately all, of the offers put to him by him was patently unreasonable.
76Finally, each of Mr Pathik’s offers were substantially bettered in the outcome of the Court’s decision in the proceeding.
Mr Bata’s submissions
77Mr Bata acknowledges that the award of costs is entirely discretionary – however, any exercise of discretion must be done judicially. Mr Bata submits that costs should be awarded on a standard basis.
78Mr Bata contends that r 26.08(2) does not operate in the mechanical manner proposed by Mr Pathik. Mr Bata focusses on the rule being subject to the Court “otherwise ordering” which maintains the Court’s absolute discretion on the matter.
79Mr Bata argues that in “otherwise ordering”, the Court can take into account any factor it requires and it is open to the Court to assess whether the rejection of an offer is reasonable or not.
80Mr Bata claims that the rejection of the offers was not unreasonable in the following circumstances:
(a) Mr Pathik’s pleadings were, until the Reasons, unclear on fundamental issues required to enable an award for damages, specifically:
(i)the termination and the date thereof (ultimately having to be “found” by the Court, but otherwise not pleaded, including not supporting the manner of termination “found” by the Court);
(ii)where termination is not pleaded with certainty, Mr Bata says he is entitled to rely on such a lapse as being a case which he does not need to answer. The Court should not expect too much from defendants being unwilling parties to any proceeding. As such, Mr Pathik was essentially put to his proof and he required a physical judgment (and declaration) to clarify and purportedly “settle” the issue;
(iii)until the first day of trial (after the expiry of any purported offer), Mr Pathik was relying on entirely stale valuation evidence (referring to a period of “May 2019”);
(iv)the particulars of loss and damage were not updated to pinpoint the ultimately found period of “May 2022” (or October 2022) as being dates of assessable loss and damage. Until the first day of trial, Mr Pathik had no reliable evidence to prove his own loss and damage as regards to diminution of value. Mr Bata asserts that he reasonably relied on this factor; and
(v)the May 2019 valuation was discarded at trial and the Reasons do not rely on the May 2019 valuation. That was the only valuation in evidence until the latter valuation was sought to be admitted.
81In relation to the Calderbank[46] offers, Mr Bata claims that they were made on the basis of a case which itself was never certain at law both under its own pleadings and the underlying evidence (being the inapplicable valuation evidence of May 2019).
[46] Ibid.
82Mr Bata submits that even where the 2 March 2022 valuation is accepted (which he continues to question) there was no Calderbank[47] offer made with reference to that evidence. To expect otherwise from Mr Bata is to expect too much of him. Such an expectation would undermine the essential foundation required to make a responsible Calderbank[48] offer.[49]
[47] Ibid.
[48] Ibid.
[49] Hazeldene’s.
83Mr Bata relies on Redlich’s J observation in Aljade & MKIC v OCBC that:
“potential litigants should not be discouraged from bringing their disputes to the Courts. It is such considerations which underlie the general rule that an order for special costs should only be made in special circumstances”.[50]
[50] [2004] VSC 351 at [32] (“Aljade”).
84Mr Bata asserts that he should not be called upon to volunteer to accept a Calderbank[51] offer if it is based on a case which has a real probability of failure due to:
(a) Fundamental omissions in the pleadings regarding termination required at law;
(b) Fundamental failure to particularise loss and damage on “a diminution of value” basis relying on “stale evidence” where the May 2019 valuation was not relied on in the Reasons, which supports Mr Bata’s reasonable apprehension regarding the evidential basis underpinning the offers;
(c) The fundamental contractual requirement to prove termination first, to trigger the liability for loss and damage of the type claimed;[52]
(d) The ultimately baseless sole allegation of “abandonment” being a position entirely incapable of being supported on the facts and at law; and
(e) The probable inability of Mr Pathik to discharge his onus of proof or prove his case and it took the trial and final judgment to show otherwise.
[51]Calderbank.
[52] Brewarrina Shire Council v Beckhaus Civil Pty Ltd & Ors [2005] NSWCA 248 at [66]-[69] per Ipp JA (McColl and Hodgson JJA agreeing).
Analysis
85Rule 26.08 of the Rules relevantly provides the following in relation to an offer of compromise:
“(2) Where an offer of compromise is made by a plaintiff and not accepted by the defendant, and the plaintiff obtains a judgment on the claim to which the offer relates no less favourable to the plaintiff than the terms of the offer, then, unless the Court otherwise orders, the plaintiff shall be entitled...
(b) in the case of any other claim of the plaintiff, to an order against the defendant for the plaintiff's costs in respect of the claim before 11.00 a.m. on the second business day after the offer was served, taxed on the ordinarily applicable basis and for the plaintiff's costs thereafter taxed on an indemnity basis. …
8) Where the plaintiff obtains judgment for the recovery of a debt or damages, and the amount of the debt or the damages was not in dispute, but only the question of liability, paragraph (2) shall not apply unless the Court is satisfied that the plaintiff’s offer was of a genuine compromise.”
86The Rules create a presumption that indemnity costs will be ordered where an offer of compromise is made by a plaintiff but not accepted, and the plaintiff subsequently obtains a judgment no less favourable than the terms of the offer. Mr Pathik’s offer of compromise dated 2 March 2023 was that he was willing to accept $600,000.00 plus costs to be taxed on the standard basis from Mr Bata. Mr Pathik subsequently obtained a judgment in the sum of $1,493,986.34 plus interest. Rule 26.08(2) is therefore engaged. Mr Pathik has obtained relief that is no less favourable to him.
87The exercise of the discretion to “otherwise orders” depends on whether such an order will advance the objectives of the rule to encourage the savings of private costs, avoiding inherent risks, delays and uncertainties of litigation by promoting early settlement, enabling the saving of public costs, and indemnifying plaintiffs who have made an offer of compromise, later found to be reasonable, from incurring further costs thereafter.[53] I accept the principles set out by the Victorian Court of Appeal in PCCEFPty Ltd that the decision to “otherwise order” will not be made lightly, and the court must exercise caution in departing from this rule.[54]
[53] Grbavac v Hart [1997] 1 VR 154 at 164.7-165.1.
[54] PCCEF Pty Ltd at [23]-[24].
88As submitted by Mr Pathik, a relevant consideration is whether Mr Bata’s rejection of the Offer was unreasonable in the circumstances. The non-exhaustive factors that are ordinarily relevant to assessing reasonableness were set out by the Victorian Court of Appeal in Hazeldene’s.[55]
[55] Hazeldene’s at [442].
89In my view, there are no special circumstances that would warrant “otherwise ordering” under rule 26.08(2). The offer complied with the requirements of rule 26.03(3) and stated that it was made in accordance with Order 26 of the Rules. It complied with the rr 27.02-27.04. The offer was open for 14 days from the date of the offer and was not withdrawn during that time. The offer clearly stated that it was made exclusive of costs and that if accepted, Mr Pathik’s costs would be taxed on a standard basis in default of agreement in accordance with r 26.02(4)(b).
90I accept Mr Pathik’s submissions that Mr Bata proceeded with the litigation and knowingly took the risk as to indemnity costs, and that the offer entailed in circumstances where:
(a) Discovery had been completed by 13 September 2022;
(b) Mr Bata had possession of each of the defect reports of Mr Ken Ryan (which were accepted by the Court at trial);
(c) Mr Pathik’s claims were made against each of the defendants jointly and severally;
(d) Mr Bata was at all material times legally represented; and
(e) Mr Bata was aware in January 2023 that the quantum of Mr Pathik’s claim exceeded one million dollars, exclusive on interest and costs, regardless of reliance on the May 2019 valuation in the particulars of loss and damage. The May 2019 valuation was not “discarded” at trial but was relied on as alternate evidence depending on the counterfactual argument made by Mr Pathik.
91In my view, the ordinary course provided for under the Rules ought follow.
92In the alternative, Mr Pathik relies on two Calderbank[56] offers in support of a special costs order. The following legal principles apply in relation to Calderbank[57] offers. It is common ground that, as a general rule, the Court will order costs to be taxed on the standard basis.[58] The discretion to make a special costs order is an unlimited one, though it must be exercised judicially and not unreasonably, and the circumstances should be “special”.[59] The usual order as to costs is that costs follow the event, and the successful party is entitled to an award of costs in its favour.[60]
[56]Calderbank.
[57] Ibid.
[58] County Court Civil Procedure Rules 2018 r 63A.30.
[59] Aljade at [10].
[60] Oshlack v Richmond River Council (1998) 193 CLR 72 at [97].
93In Colgate-Palmolive Co & Anor v Cussons Pty Ltd,[61] Shepherd J set out many categories of circumstances which will warrant the making of a special costs order, including:
(a) the making of allegations of fraud knowing them to be false;
(b) the making of irrelevant allegations of fraud;
(c) evidence of particular misconduct that causes loss of time to the court and to other parties;
(d) the fact that the proceedings were commenced or continued for some ulterior motive or with wilful disregard of known facts or clearly established law; and
(e) the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions.
[61] (1993) 46 FCR 225 at [23]– [24].
94In IMC Aviation Solutions Pty Ltd v Altain Khuder LLC,[62] the Victorian Court of Appeal also stated that:
“Special circumstances may be found where, for instance, the unsuccessful party has made serious unfounded allegations, pursued the proceeding for an ulterior purpose, wasted the court’s time, committed a contempt of court or engaged in some other improper conduct. But in each case it is a question to be determined in the light of the particular facts and circumstances”.
[62] [2011] VSCA 248 at [325].
95In considering whether or not a party should have their indemnity costs, the principles that guide the Court are set out in the decision of Habersberger J in BHP Billiton (Olympic Dam) Corporation Pty Ltd v Steuler Industriewerke GmbH (No 3)[63] as follows:
[63] [2012] VSC 414 at [59]– [67] referring to Hazeldene’s.
“First, the fact that a less favourable result is achieved does not give rise to a presumption of a special costs order. The making of an offer and its rejection are “but two albeit important circumstances” to which the Court will have regard in the exercise of its costs discretion.
Secondly, the competing policy objectives relevant to the exercise of the costs discretion are principally the desirability of promoting settlement and reducing litigation costs as against the undesirability of discouraging potential litigants from bringing their dispute to the courts.
Thirdly, the critical question is whether the rejection of the offer was unreasonable in the circumstances. As the Court of Appeal said in Hazeldene:
In our view, these competing considerations can be sufficiently accommodated by applying a test of (un)reasonableness. The critical question is whether the rejection of the offer was unreasonable in the circumstances. We see no justification for a more stringent test such as “manifestly” or “plainly” unreasonable.
Fourthly, a court considering submissions that the rejection of a Calderbank offer was unreasonable should ordinarily have regard at least to the following matters:
(a) the stage of the proceeding at which the offer was received;
(b) the time allowed for the offeree to consider the offer;
(c) the extent of the compromise offered;
(d) the offeree’s prospects of success, assessed as at the date of the offer;
(e) the clarity with which the terms of the offer were expressed; and
(f) whether the offer foreshadowed an application for indemnity costs in the event of the offeree rejecting it.
Fifthly, as the determination of whether it was unreasonable for the offeree to have rejected the offer is made “as at the time, or within a reasonably short time after, the offer” was made,[64] the Court should not too readily embrace submissions that it was inevitable that the proceedings would fail. As Hamilton J put it in Grynberg v Muller:
These submissions focus the bright light of hindsight. Hindsight sings a siren song of which Judges must be cautious …
Sixthly, the onus lies on the offeror to demonstrate the unreasonableness of the offeree’s rejection of the offer. This means that it is necessary to analyse what was proposed.
Seventhly, there is no general rule that the Calderbank offer must set out with specificity the basis for the offeror’s contention that the offeree should accept the compromise. Whether there is a need to do so depends upon a consideration of all of the circumstances existing at the time of the offer.
Eighthly, it is not necessary for the applicant for an indemnity costs order to establish matters which might be relevant to other, well-recognised, grounds for indemnity costs. Such conduct is not a pre-requisite for a finding that the rejection of the Calderbank offer was unreasonable.
Ninthly, an “all in” offer is permitted in a Calderbank offer.”
[64] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (No 3) [2002] FCA 1294 at [21] (per Goldberg J).
96Habersberger J’s decision was upheld on appeal to the Court of Appeal in Protec Pacific Pty Ltd v Steuler Services GmbH & Co KG [No 2].[65]
[65] [2015] VSCA 123 at [55].
97The above principles established by Habersberger J were referred to by the Victorian Court of Appeal in Hannover Life Re of Australasia v Colella[66] without any criticism.
[66] [2014] VSCA 205 at [91].
98The mere refusal of an offer does not automatically mean that the Court should make an order for costs on an indemnity basis where the ultimate result is less favourable than that contained in the offer.[67]
[67] Hazeldene’s at [18]-[20].
99There were two Calderbank[68] letters sent by Mr Pathik: one on 22 March 2024 for an all-in sum of $500,000.00 inclusive of costs and the other on 3 September 2024 for an all-in sum of $650,000.00 inclusive of costs.
[68] Calderbank.
100I accept Mr Pathik’s submissions that the Calderbank[69] letters were more favourable than the judgment entered. However, the principles are that there must be some unreasonableness in the refusal to accept.[70]
[69] Ibid.
[70] Hobartville Stud Pty Ltd v Union Insurance Co Ltd [2004] FCA 1600 at [6] (per Crennan J).
101The two Calderbank[71] offers were genuine offers to compromise, and they were not an invitation to capitulate by offering to accept the sum of $500,000.00, inclusive within 6 days after acceptance of the offer and the sum of $650,000.00 inclusive of costs within 10 days. Mr Bata did not respond to either of the offers.
[71]Calderbank.
102For completeness, in my view, Mr Bata acted unreasonably in rejecting the offers in circumstances where:
(a) the proceeding had been on foot for over 22 months and the amended pleadings had been filed, further discovery had been made and two mediations had been conducted;
(b) the period of 6 and 10 days to consider the offers were reasonable;
(c) the all-inclusive offers including costs and interest represented a genuine and fair compromise of the proceeding where Mr Pathik’s claim at that stage totalled over $1.3m;
(d) the offers set out the reasons why Mr Bata’s prospects of success were poor including as follows:
(i)Mr Pathik was negotiating separately with the insured defendants and would remove from his statement of claim those parts of the claim that were apportionable under the Wrongs Act 1958 (Vic), such that the remaining claims would not be apportionable;
(ii)Mr Dimitriou would no longer be a party to the proceeding and Mr Bata would not be able to escape liability by blaming him;
(iii)Mr Bata was not relying on any material to dispute Mr Pathik’s quantum claimed, it would follow that Mr Pathik’s expert on defects and valuation on loss and damage would be unopposed and accepted by the Court;
(iv)By 3 September 2024, Mr Bata had abandoned his claim to payment for variations and the remaining counterclaim was doomed to fail as set out in the affidavit of Matthew David Francke dated 16 August 2024.
(e) the terms of the offer were clear; and
(f) the consequences of not accepting the offer were adequately foreshadowed.
Third Party Claim
103On the final day of trial, counsel for the first defendant made an oral application seeking default judgment against the third defendant as no notice of appearance was filed for the third party notice by the date specified.
104I will make orders granting leave for the first defendant to enter default judgment against the third defendant for contribution and indemnity claimed in the third party notice in accordance with r 11.11(b) of the Rules.
Conclusion
105For the foregoing reasons, I am satisfied that damages for breach the contract ought to be ordered together with statutory interest and costs on an indemnity basis after 11.00am on 6 March 2023.
- - -
Certificate
I certify that these 29 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 27 March 2025.
Dated: 27 March 2025
Alexandria Peck
Associate to Her Honour Judge Burchell
SCHEDULE OF PARTIES
Amitabh Pathik
Plaintiff
and
Mark Bata
First defendant
and
ACN 162 737 322 Pty Ltd (formerly known as Rethink Pty Ltd)
Second defendant
and
Chris Dimitriou
Third defendant
and
Building Surveyors Code Pty Ltd (ACN 606 314 676)
Fourth defendant
and
Yavuz Demirel
Fifth defendant
and
Michael Gaffney
Sixth defendant
0
24
0